United States v. Witherspoon

12 C.M.A. 177, 12 USCMA 177, 30 C.M.R. 177, 1961 CMA LEXIS 283, 1961 WL 4419

• Court: United States Court of Military Appeals
• Decided: February 10, 1961
• Docket: No. 14,402
• Status: Published

Opinions

Opinion of the Court

Homer Ferguson, Judge:

At a rehearing before a special court-martial, the accused was found guilty of a number of offenses, in violation of the Uniform Code of Military Justice. Following the findings of guilty, the president adverted to the fact that the trial was a rehearing and informed the court-martial that it must also sentence the accused for another charge and specification, alleging breach of restriction, in violation of Code, supra, Article 134. Accused had pleaded guilty to this offense at his original trial, had been found guilty, and the findings had been approved by the convening and supervisory authorities. However, the ordering of the rehearing on the other offenses required disapproval of the initial sentence and necessitated the consideration of this crime in the sentencing process at the second trial.

The court sentenced accused to bad-conduct discharge, forfeiture of seventy dollars per month for five months, and confinement at hard labor for five months. Reducing the period of confinement to four months, intermediate appellate authorities otherwise affirmed. We granted accused’s petition for review, filed without specification of error, and ourselves raised the issue whether the president’s advice to the court-martial concerning the sentence improperly referred to the convening authority’s action on the penalty adjudged at the first trial.

The questioned advice included the following remarks:

“. . . The court is further advised that the maximum punishment that may be adjudged by this court for these offenses as stated in the action of the convening authorities [sic] review of the original trial is as follows: ‘Only so much of the sentence as provides for a Bad Conduct Discharge, confinement at hard labor for a period of five months and forfeiture of seventy dollars per month for a period of five months is approved and will be duly executed’. In other words that is the maximum the court can give today.”

The president’s advice was patently erroneous. United States v Jones, 10 USCMA 532, 28 CMR 98; United States v Skelton, 10 USCMA 622, 28 CMR 188; United States v Eschmann, 11 USCMA 64, 28 CMR 288. As we noted in those cases, the members of a court-martial are concerned only with the maximum imposable sentence and not with the basis for the limitation it places upon them. Otherwise, they may be led to abdicate their duty independently to determine an appropriate punishment. Thus, the president should not have informed the members that the possible penalty had been reduced because of the convening authority’s action. United States v Jones, supra; United States v Eschmann, supra.

The decision of the board of review is reversed, and the record of trial is returned to The Judge Advocate General of the Navy. The error may be purged by reassessment of the sentence or direction of a rehearing thereon.

Chief Judge Quinn concurs.